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KNOWLEDGE, SKILLS, & ABILITIES (KSAS) FOR EB-5 REGIONAL CENTERS - 1
Submitted by:
Joseph P. Whalen
238 Ontario Street, No. 6
Buffalo, NY 14207
(716) 604-4322 (cell)
(716) 768-6506 (land-line)
IMMIGRANT INVESTOR PROGRAM OFFICE (IPO)
U.S. CITIZENSHIP AND IMMIGRATION SERVICES (USCIS)
DEPARTMENT OF HOMELAND SECURITY (DHS)
131 M Street NE, Mailstop 2235
Washington, D.C. 20529
AMICUS BRIEF
KNOWLEDGE, SKILLS, & ABILITIES
(KSAS) FOR EB-5 REGIONAL CENTERS
I. INTRODUCTION
Form I-924, Application For Regional Center Under the Immigrant Investor Pilot
Program is first used to request designation by USCIS as an EB-5 Regional Center. The
applicant must demonstrate the competencies needed in order to effectively operate the
Regional Center. Such effort includes at least the following tasks: (1) coordinate multiple
investors, (2) track data, and (3) collect the evidence that will eventually be needed, not
only for (a) annual reporting on form I-924A but also (b) to support the investors’ I-829s.
These essential competencies are comprised of knowledge, skills, and abilities (KSAs).
II. EB-5 BACKGROUND
The EB-5 immigrant visa is awarded to foreigners who make an investment in a
commercial enterprise and as a result, create ten full time jobs for U.S. workers. It is
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KNOWLEDGE, SKILLS, & ABILITIES (KSAS) FOR EB-5 REGIONAL CENTERS - 2
nowhere nearly as simple as that. It is just the opposite of simple. There are many specific
rules to be meticulously followed and precise conditions that must be met. There is more
than one approach to an EB-5 investment and here are the major approaches.
A. DIRECT INVESTMENT – BUSINESS FIRST
It is allowable for an alien entrepreneur to establish a business and create the jobs
before filing an I-526 Immigrant Petition by Alien Entrepreneur. In this scenario, the alien
will simply submit evidence of lawful funds having already been spent and the jobs having
already been created. This is probably the rarest approach to EB-5 investments.
B. DIRECT INVESTMENT – SEEK PLAN APPROVAL FIRST
In this scenario, the alien supports the I-526 with a Matter of Ho compliant
comprehensive business plan along with evidence of sufficient funds to achieve the goals
stated in the plan. The plan must meet or exceed the legal requirements. If the alien is
abroad with no means to get started then this may be the only option. On the other hand,
even if the alien is otherwise lawfully present in the U.S., he or she might want the security
of having USCIS give a tacit OK before sinking the money into the venture.
Unfortunately, some unsavory characters in the U.S. may try to seek EB-5 investor
“partners” offering them the chance to speed their immigration process. This can be
dangerous when the U.S.-based “partner” misappropriates, misdirects, or simply steals the
money believing that the alien cannot do anything about it from abroad. There are those
too who may try to sell iffy “franchises” to aliens by promising that an EB-5 qualifying
business with sufficient jobs will materialize overnight. Few things are ever that easy.
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KNOWLEDGE, SKILLS, & ABILITIES (KSAS) FOR EB-5 REGIONAL CENTERS - 3
C. DIRECT INVESTMENT – HEAD START & PLAN FOR THE FUTURE
Some investors begin a business and try to parlay it into an EB-5 visa. In this
scenario, a fledgling entrepreneur might have begun a business and submit a plan for
growth to the point that it would qualify as an EB-5 business. I have seen some aliens who
are present in the U.S. in some other lawful non-immigrant status such as an E-2 Treaty
Investor establish a business and after it succeeds apply for an immigrant visa. The biggest
mistake made is the false assumption that retained earnings will count towards the
required investment amount. Profits would need to be withdrawn, taxed, and then re-
invested in order to count towards the capital investment legal requirements for the EB-5
visa.
Another major issue is the failure to utilize E-Verify on their workforce. AAO
posted an Appeal Dismissal found at this link: DEC152014_01B7203.pdf, in which an
investor operated three restaurants in Texas. The restaurants would each require at least
18 full-time employees and numerous other part-time employees. Aside from the
discrepancies between the number of hours worked and the payroll records which did not
support the claimed number of qualifying full-time workers, most were not authorized to
work in the United States. E-Verify would have helped prevent this.
D. REGIONAL CENTER POOLED INVESTMENT
This investment method is the one most pertinent to this amicus brief. In this
scenario, aliens place their funds in the hands of a USCIS-Designated EB-5 Regional
Center. These investment vehicles tend to be very large development projects.The Regional
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KNOWLEDGE, SKILLS, & ABILITIES (KSAS) FOR EB-5 REGIONAL CENTERS - 4
Center is authorized through a special program contained in legislation which is not a
permanent part of the Immigration and Nationality Act (INA). The biggest advantage to
this “Program” is that “indirect jobs” that are forecasted through an Economic Impact
Analysis count towards satisfying the job creation legal requirements for the EB-5 visa.
As of this writing, this “Program” is about to “sunset” at close of business September 30,
2015, unless Congress passes an extension.
There are several competing bills float around Capitol Hill which would extend the
“Program” or make it permanent. Each bill would make modifications to the EB-5 visa and
the Regional Center Program. In my opinion, it is likely that Congress will grant a short
straightforward extension with little or no change; possibly in a Continuing Resolution in
order to buy some time for debate on many issues. EB-5 is only one of numerous areas of
great debate that Congress needs more time to ponder. I felt that now would be a good time
to stress the necessary KSAs for those seeking Regional Center designation. Such
designation is in fact a form of licensure. Like any other license, the applicant must
demonstrate qualifications up-front. Now is the time to raise this issue because each of
those pending bills would impose more safeguards and protections against fraud which will
in turn increase demand for specialized KSAs.
III. KNOWLEDGE, SKILLS, & ABILITIES (KSAs)
Now, let’s get to the significant part. What kinds of KSAs are needed? Beyond the
KSAs needed for the particular investment vehicle, for example, the KSAs pertinent to the
hospitality industry, the Regional Center principal(s) must convince USCIS that he, she, or
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KNOWLEDGE, SKILLS, & ABILITIES (KSAS) FOR EB-5 REGIONAL CENTERS - 5
preferably, they will be able to run a Regional Center. In order to figure out what KSAs
will enable efficient operations, it is necessary to look at the endgame first. Ultimately, a
Regional Center will survive or fail based on its ability to satisfy their EB-5 investors.
Those alien investors seek one thing above all else -- a greencard. In order to achieve that
goal, the investor will have to obtain approval of an I-829 Petition by Entrepreneur to
Remove Conditions. In order to remove conditions the alien must demonstrate that their
investment was properly spent and the jobs have been created. Given the circumstances of
this variety of investment, many details are left to the Regional Center on the alien’s behalf.
The Regional Center (RC) takes on the collective responsibility to serve the needs
of the individual investors. In order to do that, the people running the RC need to
understand what the individual investors must accomplish at the end of their visa journey.
The final step for the EB-5 principal is the removal of conditions from status. In order to
make that happen, the alien entrepreneur/investor must show that the money was properly
spent and that the job creation requirement has been met. In the RC context, many, if not
all, jobs will be “indirect” jobs that were demonstrated through the “reasonable
methodology” of an Economic Impact Analysis (EIA).
When an EIA is created, many “assumptions” are made. Such assumptions will be
based on logical historical fact patterns. If the business proceeds as predicted, then the
predictions as to job creation are expected to come true. In order to measure employment
creation, certain expectations must be met. In short, certain measurable facts that are based
on specific assumptions in the EIA will be transformed into “conditions precedent”. Such
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KNOWLEDGE, SKILLS, & ABILITIES (KSAS) FOR EB-5 REGIONAL CENTERS - 6
conditions precedent must be satisfactorily “proven” by a preponderance of the evidence
in order to demonstrate job creation. The RC must figure out exactly what data must be
tracked and which documents and information must be collected during the course of the
investment in order to meet the evidence requirements for investors’ I-829 petitions in a
few years. That is the real endgame. It takes the right KSAs to get there!
IV. UNOFFICIAL INSTRUCTIONS1 & I-924 FORM INSTRUCTIONS2
Although the KSAs needed for particular investments will vary, the generalized
responsibilities for each RC should be fairly standard from one RC to the next. The RC
industry is not completely without direction on this issue. I wrote unofficial instructions on
“How to Apply for a Regional Center” back in 2008, at USCIS-HQ when it became
necessary to teach myself all about EB-5 and Regional Centers through independent study
and research. Those unofficial instructions later formed the basis for the I-924 form
instructions. The instructions were based on the regulations as modified and interpreted by
the four 1998, EB-5 Precedent Decisions, as well as my deep study of all the existing RC
Proposals at that time.
Dated 18th day of September, 2015.
/s/ Joseph P. Whalen
1 See Appendix A. 2 See Appendix B.
APPENDIX A
Up until the form I-924 was created, Regional Center applicants had very little guidance. In fact, they had nothing beyond the regulations until a Regional Center Unit was created at USCIS HQ in 2005. The early work of that unit was very much via direct communication whether by phone, e-mail, or face-to-face. There was almost zero easy to understand written guidance. In 2008, I put together some fairly “user-friendly unofficial instructions” for potential Regional Center applicants. It was purely selfish on my part. I was adjudicating the proposals and was tired of getting inadequate submissions. Some were far too vague and some had way too much extraneous garbage, none ever got it just right on the first try. The following is what was available BEFORE the I-924. The following is NOT exactly what was initially put forth because, we switched from HQ filing to CSC filing after the volume increased but before the I-924 was instituted. The I-924 became necessary so that a fee could be collected. It was not until these unofficial instruction increased the volume of submissions to the point that USCIS felt that a full blown fee study was justified. Until that increase in volume, it was not worth the effort to create a form and collect a fee for Regional Center Designation Requests. Please compare these OUTDATED UNOFFICIAL INSTRUCTIONS to the current I-924 Form Instructions in order to see which things have changed (or not). Contact me at: [email protected]
HOW TO APPLY FOR REGIONAL CENTER DESIGNATION
In all likelihood your submission will be more than several pages, please use acco-fasteners to attach the documents at the top of each page or place it in a three ring binder with tabs. Send submissions to:
USCIS California Service Center ATTN: EB-5 Regional Center Proposal P.O. Box 10526 Laguna Niguel, CA 92607-0526 For non-U.S. Postal Service deliveries (e.g. private couriers), send to: U.S. Citizenship and Immigration Services California Service Center Attn: EB-5 Processing Unit 24000 Avila Road, 2nd Floor Laguna Niguel, CA 92677
What is the Immigrant Investor Pilot Program?
The Immigrant Investor Pilot Program (“Pilot Program”) was created by Section 610 of Public Law 102-395 (October 6, 1992), as amended. This is different in certain ways from the basic EB-5 investor program.
The Pilot Program began in accordance with a Congressional mandate aimed at stimulating economic activity and creating jobs for U.S. workers, while simultaneously affording eligible aliens the opportunity to become lawful permanent residents. Through this innovative program, foreign investors are encouraged to invest funds in an economic unit known as a “Regional Center.”
A Regional Center is defined in the regulations as any economic unit, public or private, engaged in the promotion of economic growth, improved regional productivity, job creation and increased domestic capital investment.
Initial evidence requirements.
1. 8 CFR 204.6 (m) states in pertinent part:
(3) Requirements for Regional Centers. Each regional center wishing to participate in the Immigrant Investor Pilot Program shall submit a proposal to the…[Director, California Service Center]…, which:
(i) Clearly describes how the regional center focuses on a geographical region of the United States, and how it will promote economic growth through improved regional productivity, job creation, and increased domestic capital investment;
(ii) Provides in verifiable detail how jobs will be created indirectly; …………..
(iii) Provides a detailed statement regarding the amount and source of capital which has been committed to the regional center, as well as a description of the promotional efforts taken and planned by the sponsors of the regional center;
(iv) Contains a detailed prediction regarding the manner in which the regional center will have a positive impact on the regional or national economy in general as reflected by such factors as increased household earnings, greater demand for business services, utilities, maintenance and repair, and construction both within and without the regional center; and
(v) Is supported by economically or statistically valid forecasting tools, including, but not limited to, feasibility studies, analyses of foreign and domestic markets for the goods or services to be exported [if any], and/or multiplier tables.
2. It is always best to start with a cover letter that acts as an executive summary followed by a table of contents of the various tabbed sections to follow.
In reference to 8 CFR 204.6(m)(3)(i) as stated above the geographical area must be contiguous and clearly delineated. It is most helpful to provide the following series of maps, charts or written descriptions:
• The entire desired Regional Center Area • Standard Metropolitan Statistical Areas (SMSA’s) • IF KNOWN or as reasonable estimated based on current data: High Unemployment
Targeted Employment Areas (TEA’s) as determined by the Governor or designee, (1.) areas within SMSA’s or 2.) population centers of 20,000 or more outside SMSA’s; with unemployment rates 150% or more of the national rate)
• Rural Area TEAs (areas outside SMSA’s with populations under 20,000 people) • Census Tracts, Cities, Towns, Counties, etc.
• Unemployment Rates by Cities, Towns, Counties or Census Tracts, etc.
3. In reference to 8 CFR 204.6(m)(3)(ii) as stated above for a Regional Center it is imperative to fully explain indirect job creation, as well as the direct and induced jobs, if any. The requirement of creating at least 10 new full-time (35 hours per week) jobs per each individual alien investor may be satisfied by showing that, as a result of the investment and the activities of the new enterprise, at least 10 jobs per alien investor will be created directly or indirectly through an employment creation multiplier effect.
Submit an Economic Analysis and model that shows and describes job creation for each category of economic activity (for example, manufacturing, food production/processing, warehousing, tourism and hospitality, transportation, power generation, agriculture, etc.)
Aspects of this element of the proposal may be combined with items 7 and 8, below in a single economic analysis and job creation model.
Concerns about the lack of a level and range of detail in the business plan and impact analyses, which makes sound business sense, especially at the individual I-526 level of detail, unfortunately is neither explicitly required nor demanded under the provisions of the INA which apply to the Immigrant Investor Pilot Program nor specific amendments to the statute, especially in the 2002 amendment Per Public Law 107-273, enacted November 2, 2002, which clearly states:
“A regional center shall have jurisdiction over a limited geographic area, which shall be described in the proposal and consistent with the purpose of concentrating pooled investment in defined economic zones. The establishment of a regional center may be based on general predictions, contained in the proposal, concerning the kinds of commercial enterprises that will receive capital from aliens, the jobs that will be created directly or indirectly as a result of such capital investments, and the other positive economic effects such capital investments will have.”
When relying on econometric models for indirect job creation it is imperative that “direct jobs” will be real identifiable jobs supported by wage reports or I-9 forms otherwise they must be explicitly identified as hypothetical in nature. Another method would be to predict jobs based on dollar amount invested in the overall project, this too must be made clear. This distinction will be critical at the I-829 removal of condition stage of the immigration process.
4. In reference to 8 C.F.R. § 204.6(m)(3)(iii), a proposal must include a detailed statement regarding the amount and source of the capital that has been committed to the Regional Center, in addition to the description of the promotional efforts taken and planned by the Regional Center’s sponsors. USCIS has interpreted the words, “amount and source of capital that has been committed to the Regional Center” to mean the capital sufficient to sustain the Regional Center distinct from immigrant investors’ required capital investment in a new commercial enterprise within the Regional Center.
The detailed statement that is required to meet the regulatory requirement relating to the amount and source of capital committed to the Regional Center should include:
a) the exact amount of funds that have been dedicated to the Regional Center to accomplish the goals of the Pilot Program;
b) the source of such funds; c) whether the amount is sufficient to sustain the Regional Center; and d) evidence that the funds have already been committed to the Regional Center.
None of the capital sustaining the Regional Center can come from immigrant investors’ required threshold capital investment (as distinct from the new commercial enterprises’ revenues). This separation of funds is necessary to enable the alien entrepreneur to qualify for the conditional EB-5 immigrant investor classification at the I-526 petitioning stage of the immigration process.
5. Also, under 8 CFR 204.6(m)(3)(iii) as stated above for any individual alien investor who will be solicited by a Regional Center to invest the requisite capital into a Regional Center commercial activity, it will be incumbent on the Regional Center to engage in a due diligence process to establish that all sources of capital can be fully explained and clearly shown to have been lawfully obtained.
Submit a plan of proposed Regional Center operation which addresses how investors will be recruited and how the Regional Center will conduct its due diligence to accommodate the requirement that all immigrant investor funds will be lawfully obtained and describe what measures will be taken by the Regional Center to ensure and validate this. Will the submission of certain financial documents be required of foreign investors or will the Regional Center, for example, utilize a professional investigating firm to vet a potential investor’s source of funds? What are your plans in this regard?
6. Lastly under 8 CFR 204.6(m)(3)(iii), USCIS interprets the words “promotional efforts” to mean an advertising or marketing program planned by the sponsors of the Regional Center that is designed to attract immigrant investors to the Regional Center. Regional Center proposals require a full description of the past, current and future promotional activities for the Regional Center. This shall include a description of the budget for this activity as well as a statement as to the source of those funds used to accomplish this necessary task.
7. In reference to 8 CFR 204.6 (m)(3)(iv) as stated above a detailed prediction must be provided which includes the topics of regional or national impact, household earnings, greater demand for business services, utilities, maintenance and repair, and construction both within and without the Regional Center. This can be combined with items 3, above, and 8, below.
The proposal should not make vague references to regional economic impacts but should provide actual monetary predictions and address the elements listed in USCIS regulations. The economic model and analysis requested in item 3, above, and item 8, below, will also need to address these specific points as listed here.
8. In reference to 8 CFR 204.6 (m)(3)(v) as stated above submit a complete and valid economic analysis sufficiently detailed to predict the overall economic impact to be made by the Regional Center. This can be combined with items 3 and 7, above.
Again it is stressed that the economic analysis that can be combined with items 3 and 7, above, must be sufficiently detailed to predict the overall economic impact and localized impacts to be made by the Regional Center’s investment activities and projects.
9. The business aspects of the Regional Center must be fully explained as to its structure. This aspect of a proposal includes, but is not limited to, the following basic elements or samples of them as applicable to the business approach and structure to be used by the Regional Center:
• An overall Business Plan-mandatory • Draft Operating Agreement • Draft Partnership Agreement • Draft Subscription Agreement • Draft Escrow Agreements and Instructions (one for capital and one for any service fees)
Such agreements usually include an “out clause” in the event of an unsuccessful visa process as a marketing tool but are not required.
• List of proposed reputable financial institutions to serve as the Escrow Agent(s) • Draft of an Offering Letter, Memorandum, Confidential Private Placement
Memorandum, or similar offering made in writing to an immigrant investor through the Regional Center.
• Draft Memorandum of Understanding, Interagency Agreement, Contract, Letter of Intent, Advisory Agreement, or similar agreement to be entered into with any other party, agency or organization to engage in activities on behalf of or in the name of the Regional Center.
10. Submit a description of the applicant’s plans to administer, oversee, and manage the proposed Regional Center, including but not limited to such things as to identify, assess and evaluate proposed immigrant investor projects and enterprises; how the proposed Regional Center would perform “due diligence” as to whether investment capital to be sought will consist solely of alien investor capitol or a combination of alien investor capital and domestic capital; how to monitor all investment activities affiliated, through or under the sponsorship of the proposed Regional Center, and to maintain records, data and information on projects, investors, business activities, etc., in order to report to USCIS for each Federal Fiscal Year . This is known as “due diligence” and is coupled with “oversight reporting responsibilities”. Fully explained in detail below.
DESIGNEE’S RESPONSIBILITIES INHERENT IN CONDUCT OF A USCIS DESIGNATED REGIONAL CENTER:
CURRENT VERSION OF:
8 CFR § 204.6 Petitions for employment creation aliens.
(m) Immigrant Investor Pilot Program —
(6)* Termination of participation of regional centers. To ensure that regional centers continue to meet the requirements of section 610(a) of the Appropriations Act, a regional center must provide USCIS with updated information to demonstrate the regional center is continuing to promote economic growth, improved regional productivity, job creation, or increased domestic capital investment in the approved geographic area. Such information must be submitted to USCIS on an annual basis, on a cumulative basis, and/or as otherwise requested by USCIS, using a form designated for this purpose. USCIS will issue a notice of intent to terminate the participation of a regional center in the pilot program if a regional center fails to submit the required information or upon a determination that the regional center no longer serves the purpose of promoting economic growth, including increased export sales, improved regional productivity, job creation, and increased domestic capital investment. The notice of intent to terminate shall be made upon notice to the regional center and shall set forth the reasons for termination. The regional center must be provided 30 days from receipt of the notice of intent to terminate to offer evidence in opposition to the ground or grounds alleged in the notice of intent to terminate. If USCIS determines that the regional center's participation in the Pilot Program should be terminated, USCIS shall notify the regional center of the decision and of the reasons for termination. As provided in 8 CFR 103.3, the regional center may appeal the decision to USCIS within 30 days after the service of notice.
[*Most recently amended by 75 FR 58990, Sept. 24, 2010, a major re-write, includes a form.]
PRIOR VERSION OF:
8 CFR § 204.6 Petitions for employment creation aliens.
(m) Immigrant Investor Pilot Program —
(6) Termination of participation of regional centers. To ensure that regional centers continue to meet the requirements of section 610(a) of the Appropriations Act, the Assistant Commissioner for Adjudications shall issue a notice of intent to terminate the participation of a regional center in the pilot program upon a determination that the regional center no longer serves the purpose of promoting economic growth, including increased export sales, improved regional productivity, job creation, and increased domestic capital investment. The notice of intent to terminate shall be made upon notice to the regional center and shall set forth the reasons for termination. The regional center must be provided thirty days from receipt of the notice of intent to terminate to offer evidence in opposition to the ground or grounds alleged in the notice of intent to terminate. If the Assistant Commissioner for Adjudications determines that the regional center's participation in the Pilot Program should be terminated, the Assistant Commissioner for Adjudications shall notify the regional center of the decision and of the reasons for termination. The regional center may appeal the decision within thirty days after the service of notice to the Associate Commissioner for Examinations as provided in 8 CFR 103.3.
Prior to the creation of the USCIS Form I-924A, and based on the previous version of 8 CFR 204.6(m)(6), Regional Centers were instructed thusly:
The law, as reflected in the regulations at 8 CFR 204.6(m)(6), requires that an approved Regional Center in order to maintain the validity of its approval and designation must continue to meet the statutory requirements of the Immigrant Investor Pilot Program by serving the purpose of promoting economic growth, including increased export sales (where applicable), improved regional productivity, job creation, and increased domestic capital investment. Therefore, in order for USCIS to determine whether your Regional Center is in compliance with the above cited regulation, and in order to continue to operate as a USCIS approved and designated Regional Center, your administration, oversight, and management of your Regional Center shall be such as to monitor all investment activities under the sponsorship of your Regional Center and to maintain records, data and information on a quarterly basis in order to report to USCIS upon request the following year to date information for each Federal Fiscal Year1, commencing with the initial year as follows:
• Provide the principal authorized official and point of contact of the Regional Center responsible for the normal operation, management and administration of the Regional Center.
• Be prepared to explain how you are administering the Regional Center and how you will be actively engaged in supporting a due diligence screening of its alien investors’ lawful source of capital and the alien investor’s ability to fully invest the requisite amount of capital.
• Be prepared to explain the following:
How the Regional Center is actively engaged in the evaluation, oversight and follows up on any proposed commercial activities that will be utilized by alien investors.
How the Regional Center is actively engaged in the ongoing monitoring, evaluation, oversight and follows up on any investor commercial activity affiliated through the Regional Center that will be utilized by alien investors in order to create direct and/or indirect jobs through qualifying EB-5 capital investments into commercial enterprises within the Regional Center.
• Be prepared to provide:
the name, date of birth, petition receipt number, and alien registration number (if one has been assigned by USCIS) of each principal alien investor who has made an investment and has filed an EB-5/I-526 Petition with USCIS, specifying whether:
the petition was filed, is pending, was approved, denied, or
1 A Federal Fiscal Year runs for twelve consecutive months from October 1st to September 30th.
withdrawn by the petitioner, together with the date(s) of such event.
• The total number of visas represented in each case for the principal alien investor identified above, plus his/her dependents (spouse and children) for whom immigrant status is sought or has been granted.
• The country of nationality of each alien investor who has made an investment and filed an EB-5/I-526 petition with USCIS.
• The U.S. city and state of residence (or intended residence) of each alien investor who has made an investment and filed an EB-5/I-526 petition with USCIS.
• For each alien investor listed above, identify the following:
the date(s) of investment in the commercial enterprise; the amount(s) of investment in the commercial enterprise; and the date(s), nature, and amount(s) of any payment/remuneration/profit/return on
investment made to the alien investor by the commercial enterprise and/or Regional Center from when the investment was initiated to the present.
• Be prepared to identify/list each of the target industry categories of business activity within the geographic boundaries of your Regional Center that have:
received alien investors’ capital, and in what aggregate amounts; received non-EB-5 domestic capital that has been combined and invested together,
specifying the separate aggregate amounts of the domestic investment capital; of the total investor capital (alien and domestic) identified above, identify and list the
following:
The name and address of each “direct” job creating commercial enterprise.
The industry category for each indirect job creating investment activity.
• Be prepared to provide:
The total aggregate number of approved EB-5 alien investor I-526 petitions per each Federal Fiscal Year to date made through your Regional Center.
The total aggregate number of approved EB-5 alien investor I-829 petitions per each Federal Fiscal Year to date through your Regional Center.
The total aggregate sum of EB-5 alien capital invested through your Regional Center for each Federal Fiscal Year to date since your approval and designation.
The combined total aggregate of “new” direct and/or indirect jobs created by EB-5 investors through your Regional Center for each Federal Fiscal Year to date since your approval and designation.
If applicable, the total aggregate of “preserved” or saved jobs by EB-5 alien investors into troubled businesses through your Regional Center for each Federal Fiscal Year to date since your approval and designation.
• If for any given Federal Fiscal Year your Regional Center did or does not have investors to report, then provide:
a detailed written explanation for the inactivity, a specific plan which specifies the budget, timelines, milestones and critical steps to: actively promote your Regional Center program,
identify and recruit legitimate and viable alien investors, and a strategy to invest into job creating enterprises and/or investment activities within the
Regional Center.
• Regarding your website, if any, please be prepared to provide a hard copy which represents fully what your Regional Center has posted on its website, as well as providing your web address. Additionally, please provide a packet containing all of your Regional Center’s hard copy promotional materials such as brochures, flyers, press articles, advertisements, etc.
• Finally, please be aware that it is incumbent on each USCIS approved and designated Regional Center, in order to remain in good standing, to notify the USCIS EB-5 Immigrant Investor Program within 15 business days at: [email protected] of any change of address or occurrence of any material change in:
the name and contact information of the responsible official and/or Point of Contact (POC) for the RC,
the management and administration of the RC,
the RC structure,
the RC mailing address, web site address, email address, phone and fax number,
the scope of the RC operations and focus,
the RC business plan,
any new, reduced or expanded delegation of authority , MOU, agreement, contract, etc. with another party to represent or act on behalf of the RC,
the economic focus of the RC, or
any material change relating to your Regional Center’s basis for its most recent designation and/or reaffirmation by USCIS.
Now that USCIS has outlined the duties inherent in the conduct of a Regional Center, please submit a plan of action to remain in compliance with the enumerated requirements.
11. With respect to the process by which a High Unemployment Area (USCIS TEA) is designated by the State. The exact and complete relevant language of the regulation that covers this may be found at 8 CFR 204.6(i), where it reads as follows:
State designation of a high unemployment area. The state government of any state of the United States may designate a particular geographic or political subdivision located within a metropolitan statistical area or within a city or town having a population of 20,000 or more within such state as an area of high unemployment (at least 150 percent of the national average rate). Evidence of such designation, including a description of the boundaries of the geographic or political subdivision and the method or methods by which the unemployment statistics were obtained, may be provided to a prospective alien entrepreneur for submission with Form I-526. Before any such designation is made, an official of the state must notify the… [Chief, Office of Service Center Operations]… of the agency, board, or other appropriate governmental body of the state which shall be delegated the authority to certify that the geographic or political subdivision is a high unemployment area.
Therefore it is incumbent upon the state to notify USCIS which “governmental body of the state” has been delegated the authority by the Governor to certify that a geographic or political subdivision is a high unemployment area for purposes of being designated as a Targeted Employment Area (TEA) under USCIS regulations. [Applicable sentence in bold above.] It is left to the appropriate designee within the state to exercise its authority and utilize what method or methods of its choosing in obtaining the unemployment statistics.
IF SUCH DESIGNATION HAS NOT ALREADY BEEN MADE:
A letter from the Governor of the state identifying the designated authority within the state to certify the geographic area(s) or political subdivision(s) within applicable metropolitan statistical areas as having high unemployment equal to 150% or more of the national unemployment rate would need to be addressed as follows and sent via Express Mail or courier service to:
Chief, Office of Service Center Operations, MS 2060 U.S. Citizenship and Immigration Services 20 Massachusetts Avenue, NW Washington, DC 20529-2060
Further clarification of the role of the state designated authority in the I-526 process is found at 8 CFR 204.6 (j) (6) (ii) (B) as follows:
(6) If applicable, to show that the new commercial enterprise has created or will create employment in a targeted employment area, the petition must be accompanied by: ….. (ii) In the case of a high unemployment area: ….. (B) A letter from an authorized body of the government of the state in which the new commercial enterprise is located which certifies that the geographic or political subdivision of the metropolitan statistical area or of the city or town with a population of 20,000 or more in
which the enterprise is principally doing business has been designated a high unemployment area. The letter must meet the requirements of 8 CFR 204.6(i). [Applicable sentence underlined above.]
It is hoped that the above references and information will be of help to you and the appropriate officials of the state with respect to your interest in seeking to establish a Regional Center through the Immigrant Investor Pilot Program that would focus within the state.
PLEASE NOTE: For your proposal submission and supporting evidence for items 1 through 11 above, please use acco-fasteners or place in a three ring binder with tabs to attach the documents at the top of each page, and individually tab the written materials/responses which you submit for each of the applicable items listed above in items 1 through 11. Also, submit the proposal in duplicate.
Translations Any document containing a foreign language submitted to USCIS shall be accompanied by a full English translation that the translator has certified as complete and accurate, and by the translator’s certification that he or she is competent to translate from the foreign language into English.
Copies Unless specifically required that an original document be filed with an application or petition, an ordinary legible photocopy may be submitted. Original documents submitted when not required will remain part of the record, even if the submission was not required.
Address Changes If you change your address and you have an application or petition pending with USCIS, you may change your address by sending notification to:
USCIS California Service Center P.O. Box 10526 Laguna Niguel, CA 92607-0526
(Or by E-mail at: [email protected] )
If you have any questions concerning any such approval and designation under the Immigrant Investor Pilot Program, please contact the USCIS EB-5 Immigrant Investor Program by Email at [email protected]
Joseph P. Whalen, Independent EB-5 Consultant, Advocate, Trainer & Advisor
1348 Ridge Rd | PMB 36 | Lackawanna, NY 14218 Phone: (716) 604-4233 Fax: (716)568-8208 E-mail: [email protected] or [email protected] or twitter@JoeWhalen1 web http://www.slideshare.net/BigJoe5 or http://eb5info.com/eb5-advisors/34-silver-surfer DISCLAIMER: Work is performed by a non-attorney independent business consultant. It is the client's responsibility to have any and all non-attorney work products checked by an attorney. I provide highly-individualized training based on consultation with my clients. I serve Regional Center Principals and their counsel. I am not an attorney myself although I have trained numerous attorneys and INS/USCIS adjudicators in complex issues within immigration and nationality law. I do not prepare forms, write business plans, or create economic analyses. I do review them for clients prior to submission and suggest corrections and/or modifications to run by your attorney and investment advisor. NAICS Code: 611430 Professional and Management Development Training [posted August 15, 2012]
APPENDIX B
Form I-924 Instructions 03/18/15 Y Page 1
Department of Homeland Security U.S. Citizenship and Immigration Services
OMB No. 1615-0061; Expires 03/31/2016
Instructions for Form I-924, Application for Regional Center Under the Immigrant Investor Pilot Program
What Is the Purpose of This Form?
This form is used to:
1. Apply to U.S. Citizenship and Immigration Services (USCIS) to request designation of an entity to be a regional center under the Immigrant Investor Pilot Program.
2. Request approval of an amendment to a previously approved regional center. An amended regional center designation request may include requests for determinations relating to any or all of the reasons for filing an amendment request noted below.
A. An amendment request may be filed to seek approval of changes to the Regional Center's:
1. Geographic area;
2. Organizational structure or administration;
3. Capital investment projects, to include changes in the economic analysis and underlying business plan used to estimate job creation for previously approved investment opportunities and industrial clusters;
4. Affiliated commercial enterprise's organizational structure and/or capital investment instruments or offering memoranda.
B. An amendment may also be filed to seek a preliminary determination of EB-5 compliance for documentation provided as an exemplar Form I-526, Immigrant Petition by Alien Entrepreneur, prior to the filing of Form I-526 petitions by individual alien entrepreneurs with USCIS.
This form may be filed by an individual on behalf of a State or local governmental agency, a partnership, or any other existing business entity established in the United States and its territories by an individual, who has the executive or managerial authority to seek the Regional Center designation, or an amended designation.
Who May File This Form?
3. Answer all questions fully and accurately. State that an item is not applicable with "N/A." If the answer is none, write "none."
General Instructions
Fill Out the Form
2. If extra space is needed to complete any item, attach a continuation sheet, indicate the item number, and date and sign each sheet.
1. Type or print legibly in black ink.
Who Must File a Form I-924 Supplement for Each Fiscal Year?Each designated regional center entity must file a Form I-924 Supplement for each fiscal year (October 1 through September 30) within 90 days after the end of the fiscal year (on or before December 29) of the calendar year in which the fiscal year ended.
Initial Evidence Requirements
1. Initial Evidence Requirements for filing:
A. A request for the Approval and Designation of a Regional Center; or
B. An Amendment to a Previously Approved Regional Center Designation.
2. The Regional Center must focus on a geographical area. This area must be contiguous and clearly identified in the application by providing a detailed map of the proposed geographic area of the Regional Center.
3. Each Regional Center must fully explain how at least 10 new full-time jobs will be created by each individual alien investor within the Regional Center either directly or indirectly.
4. Each application must be properly signed and filed. A photocopy of a signed application or a typewritten name in place of a signature is not acceptable.
Provide an economic analysis that relies on statistically valid forecasting tools that shows and describes how jobs will be created for each industrial category of economic activity (for example, manufacturing, food production/processing, warehousing, tourism and hospitality, transportation, power generation, agriculture, etc.)
The job creation analysis for each economic activity must be supported by a copy of a business plan for an actual or exemplar capital investment project for that category. Note: A business plan provided in support of a regional center application should contain sufficient detail to provide valid and reasoned inputs into the economic forecasting tools and must demonstrate that the proposed project is feasible under current market and economic conditions. The form of the EB-5 investment from the commercial enterprise into the job creating project (equity, loan, or some other financial arrangement) should be identified.
Form I-924 Instructions 03/18/13 Y Page 2
The business plan should also identify any and all fees, profits, surcharges, or other like remittances that will be paid to the regional center or any of its principals or agents through EB-5 capital investment activities.
Provide the industry category title and the North American Industry Classification System (NAICS) code for each industrial category. The NAICS code can be obtained from the U.S. Department of Commerce, Census Bureau (www.census.gov/epcd/www/naics.htm). Enter the code from left to right, one digit in each of the six boxes provided in the form in Part 3, item 7. If you use a code with fewer than six digits, enter the code left to right and then add zeros in the remaining unoccupied boxes.
The application should be supported by a statement from the principal of the Regional Center that explains the methodologies that the Regional Center will use to track the infusion of each EB-5 alien investor's capital into the job creating enterprise, and to allocate the jobs created through the EB-5 investments in the job creating enterprise to each associated EB-5 alien investor. The anticipated minimum capital investment threshold (either $1,000,000 or $500,000) for each investor should also be identified.
NOTE: INA section 203(b)(5)(A)(ii) requires that each EB-5 alien investor must create full-time employment for not fewer than 10 U.S. citizens or aliens lawfully admitted for permanent residence or other immigrants lawfully authorized to be employed in the United States. (Jobs created for the EB-5 alien investor and his or her spouse, sons, or daughters do not qualify.)
8 CFR 204.6(j)(4)(ii) and 8 CFR 216.6(a)(4) provide a means for EB-5 alien investors to meet the statutory requirement of creating at least 10 jobs for qualifying U.S. workers through capital investments in a “troubled business.” The EB-5 alien investor's capital investment in a “troubled business” must maintain the number of existing employees at no less than the pre-investment level for the period following his or her admission as a conditional permanent resident.
In order to meet the requirements of INA 203(b)(5)(A)(ii), each alien investor must create or maintain at least 10 jobs through the capital investment in a troubled business. If a regional center plans to focus on capital investments in “troubled businesses” within the geographic area of the regional center, then the economic analysis, business plan, and feasibility study submitted must show that each EB-5 alien investor's capital investment in a “troubled business” commercial enterprise will create or maintain at least 10 direct or indirect jobs.
4. Provide a detailed description of the past, current and, future promotional activities for the regional center. Include a description of the budget for this activity, along with evidence of the funds committed to the regional center for promotional activities.
Submit a plan of operation for the regional center which addresses how investors will be recruited and how the regional center will conduct its due diligence to ensure that all immigrant investor funds affiliated with its capital investment projects will be obtained from lawful sources.
5. Provide a general prediction which addresses the prospective impact of the capital investment projects sponsored by the regional center, regionally or nationally, with respect to increases in household earnings; greater demand for business services, utilities, maintenance and repair; and construction both within and without the regional center.
6. The application must fully describe and document the organizational structure of the regional center. In addition, it is helpful for the regional center to show that the capital investment offering instruments, business structure, and operating agreements of the proposed commercial enterprises that will be affiliated with the regional center are compliant with the EB-5 statutory and regulatory requirements, as well as the binding EB-5 precedent decisions.
NOTE: There are four EB-5 precedent decisions, which may be accessed at http://www.justice.gov/eoir/vll/intdec/lib_indecitnet.html:
i. Matter of Soffici, 22 I&N Dec. 158 (BIA 1998);
ii. Matter of Izummi, 22 I&N Dec. 169 (BIA 1998). Note: Pub. L. 107-273 eliminated the requirement set forth in Izummi that, in order for a petitioner to be considered to have “created” an original business, he or she must have had a hand in its actual creation. Under the new law, an alien may invest in an existing business at any time following its creation, provided he or she meets all other requirements of the regulations;
iii. Matter of Hsiung, 22 I&N, Dec. 201 (BIA 1998); and
iv. Matter of Ho, 22 I&N Dec. 206 (BIA 1998).
Documentation of the above should be included but not limited to:
A. A description and documentation of the business structure of both the regional center entity and the commercial enterprises that are or will be affiliated with the regional center, such as articles of incorporation, certificate of incorporation, or legal creation as a partnership or limited liability company (LLC), partnership or LLC agreements, etc.;
Form I-924 Instructions 03/18/15 Y Page 3
B. Draft subscription agreement for investment into the commercial enterprise;
C. Draft escrow agreement and instructions, if any;
D. List of proposed financial institutions that will serve as the Escrow Agent, if any;
E. Draft of an offering letter, memorandum, private placement memorandum, or similar offering to be made in writing to an immigrant investor offering capital investments through the regional center; and
NOTE: For your application submission and supporting evidence for items 1 through 6 above, please use fasteners to attach the documents at the top of each page, and individually tab the corresponding written materials and statements.
F. Draft memorandum of understanding, interagency agreement, contract, letter of intent, or similar agreement to be entered into with any other party, agency or organization to engage in activities on behalf of or in the name of the regional center.
Translations. Any document containing foreign language submitted to USCIS must be accompanied by a full English language translation which the translator has certified as complete and accurate, and by the translator's certification that he or she is competent to translate from the foreign language into English.
Copies. Unless specifically required that an original document be filed with an application or petition, a legible photocopy may be submitted. Original documents submitted when not required may remain a part of the record.
General Evidence
Where To File?
Submit Form I-924 and all supporting documentation to:
For direct mail, send to:
U.S. Citizenship and Immigration Services California Service Center Attn: EB-5 Processing Unit P.O. Box 10526 Laguna Niguel, CA 92607-0526
What Is the Filing Fee?
The filing fee for this form is $6,230.
NOTE: There is no separate filing fee for the filing of Form I-924A Supplement.
2. Make the check or money order payable to U.S. Department of Homeland Security.
Use the following guidelines when you prepare your check or money order for filing the fee:
1. The check or money order must be drawn on a bank or other financial institution located in the United States and must be payable in U.S. currency; and
NOTE: Spell out U.S. Department of Homeland Security; do not use the initials "USDHS" or "DHS."
Notice to Those Making Payment by Check. If you send us a check, it will be converted into an electronic funds transfer (EFT). This means we will copy your check and use the account information on it to electronically debit your account for the amount of the check. The debit from your account will usually take 24 hours and will be shown on your regular account statement.
You will not receive your original check back. We will destroy your original check, but we will keep a copy of it. If the EFT cannot be processed for technical reasons, you authorize us to process the copy in place of your original check. If the EFT cannot be completed because of insufficient funds, we may try to make the transfer up to two times.
The fee on this form is current as of the edition date appearing in the lower right corner of this page. However, because USCIS fees change periodically, you can verify if the fees are correct by following one of the steps below:
How to Check If the Fees Are Correct
1. Visit the USCIS Web site at www.uscis.gov, select “FORMS,” and check the appropriate fee; or
2. Telephone the USCIS National Customer Service Center at 1-800-375-5283 and ask for fee information. For TTY (deaf or hard of hearing) call: 1-800-767-1833.
For non-U.S. Postal Service deliveries (e.g., private couriers), send to:
U.S. Citizenship and Immigration Services California Service Center Attn: EB-5 Processing Unit 24000 Avila Road, 2nd Floor Laguna Niguel, CA 92677
Form I-924 Instructions 03/18/15 Y Page 4
For direct mail, send to:
U.S. Citizenship and Immigration Services California Service Center Attn: EB-5 Processing Unit P.O. Box 10526 Laguna Niguel, CA 92607-0526
Address Changes
If you change your address and you have a Form I-924 application pending with USCIS, you may change your address by sending notification to:
For non-U.S. Postal Service deliveries (e.g., private couriers), send to:
U.S. Citizenship and Immigration Services California Service Center Attn: EB-5 Processing Unit 24000 Avila Road, 2nd Floor Laguna Niguel, CA 92677
Processing Information
Initial processing. Once Form I-924 has been accepted, it will be checked for completeness, including submission of the required initial evidence. If you do not completely fill out the form or file it without required initial evidence, you will not establish a basis for eligibility, and we may deny your Form I-924.
Acceptance. Any application that is not signed or accompanied by the correct fee will be rejected with a notice that it is deficient. You may correct the deficiency and resubmit the application. However, an application is not considered properly filed until accepted by USCIS.
Decision. The decision on Form I-924 involves a determination of whether you have established eligibility for the requested designation, or an amendment to a previously approved designation. You will be notified of the decision in writing.
Requests for more information or evidence. We may request more information or evidence. We may also request that you submit the originals of any copy. We will return these originals when they are no longer needed.
Approval. If you have established that you qualify for Regional Center designation, or a designation amendment, then the application will be approved. The approval notice will provide information as to your responsibilities and obligations as a USCIS-designated regional center, and the evidence to submit in support of regional center-affiliated individual EB-5 petitions with USCIS, as well as details on the reporting and oversight requirements for Regional Centers.
Designated Regional Centers must notify USCIS within 30 days of a change of address, contact information, regional center principal(s), contracting agents or similar changes in the operation or administration of the Regional Center. Notification can be made by sending an e-mail to the EB-5 Program mailbox at: [email protected].
NOTE: An original Form G-28 must also be provided through the mail as outlined in the Form G-28 filing instructions for changes in the attorney of record.
NOTE: Beginning with the fiscal year following approval, each designated Regional Center entity must file the Form I-924A Supplement for each fiscal year (October 1 through September 30) within 90 days after the end of the fiscal year (on or before December 29) of the calendar year in which the fiscal year ended.
Denial. If you have not established that you qualify for the benefit sought, the application will be denied. You will be notified in writing of the reasons for the denial, and of the regional center's right to appeal the decision to deny the application to the Administrative Appeals Office as specified in 8 CFR 103.3.
To ensure you are using the latest version of this form, visit the USCIS Web site at www.uscis.gov where you can obtain the latest USCIS forms and immigration-related information. If you do not have internet access, you may order USCIS forms by calling our toll-free number at 1-800-870-3676. You may also obtain forms and information by telephoning our USCIS National Customer Service Center at 1-800-375-5283. For TTY (deaf or hard of hearing) call: 1-800-767-1833.
USCIS Forms and Information
To make an inquiry or ask a question about the Regional Center Program you may send an e-mail to: [email protected]
USCIS Compliance Review and Monitoring
By signing this form, you have stated under penalty of perjury (28 U.S.C. 1746) that all information and documentation submitted with this form is true and correct. You also have authorized the release of any information from your records that USCIS may need to determine eligibility for the benefit you are seeking and consented to USCIS verification of such information.
The Department of Homeland Security has the right to verify any information you submit to establish eligibility for the immigration benefit you are seeking at any time. USCIS' legal right to verify this information is in 8 U.S.C. 1103, 1155, 1184, and 8 CFR parts 103, 204, and 205. To ensure compliance with applicable laws and authorities, USCIS may verify information before or after your case has been decided.
Form I-924 Instructions 03/18/15 Y Page 5
Agency verification methods may include but are not limited to: review of public records and information; contact via written correspondence, the Internet, facsimile, or other electronic transmission or telephone; unannounced physical site inspections of residences and places of employment; and interviews. Information obtained through verification will be used to assess your compliance with the laws and to determine your eligibility for the benefit sought.
Subject to the restrictions under 8 CFR part 103.2(b)(16), you will be provided an opportunity to address any adverse or derogatory information that may result from a USCIS compliance review, verification, or site visit after a formal decision is made on your case, or after the agency has initiated an adverse action which may result in revocation or termination of an approval.
Paperwork Reduction Act
An agency may not conduct or sponsor an information collection and a person is not required to respond to a collection of information unless it displays a currently valid OMB control number. The public reporting burden for this collection of information is estimated at 40 hours per response for each application.
The estimated reporting burden for this collection of information the time for reviewing instructions and completing and submitting the form. Send comments regarding this burden estimate or any other aspect of this collection of information, including suggestions for reducing this burden, to: U.S. Citizenship and Immigration Services, Regulatory Coordination Division, Office of Policy and Strategy, 20 Massachusetts Ave., N.W., Washington, D.C. 20529-2140, OMB No. 1615-0061. Do not mail your completed Form I-924 to this address.
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